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Withdraw constitutional change: U.N. Human Rights Council

The United Nations Human Rights Council says changes to the Land and Titles Court (L.T.C.) will break with international standards of judicial independence and warned against amending the constitution to restructure the courts. 

The U.N.’s Special Rapporteur on the Independence of Judges and Lawyers, Mr Diego García-Sayán, wrote an open letter to the Samoan Government this week in which he expressed profound concerns for the bills’ potential impact on Samoan democracy.

Mr García-Sayán wrote: “I am concerned that the proposed amendments to the Constitution, the Judicature Ordinance and the Lands and Titles Act would, if adopted, fall short of international standards relating to the independence of the judiciary and the separation of powers. 

“I am also worried at the wide discretionary powers that the executive power, through the Head of State, retains in relation to the appointment and dismissal of the Chief Justice, the President of the LTC, and ordinary judges.” 

The letter dated 26 May, 2020 focuses on the Constitution Amendment Bill 2020, which supports two other bills, the Lands and Titles Court Bill 2020 and Judicature Bill 2020. 

Together, the bills would create an independent L.T.C. Court autonomous from the rest of the judicial system and with its own appeals court structure.

The bills are currently the subject of a Special Committee of Inquiry being conducted by the Parliament and travelling around the country. 

Mr García-Sayán is an appointee of the United Nations Human Rights Council. The position of the Special Rapporteur on the independence of judges and lawyers was created in 2008 to inquire into the status of national judiciaries and raise the alarm if they come under threat from policy change. 

In his letter Mr. García-Sayán reminded the Government and its leaders of Samoa’s obligations under article 14 of the International Covenant on Civil and Political Rights (ICCPR), to which it acceded on 15 February 2008. 

“This [treaty] provides that everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law,” said Mr García-Sayán.

The Special Rapporteur, Mr García-Sayán, before his current appointment was a former two-term Judge on the Inter-American Court of Human Rights. 

He said that the Human Rights Committee was of the view that the independence of a judicial tribunal was “an absolute right that is not subject to any exception.” 

The requirement of independence, he wrote,  “refers, in particular, to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure until a mandatory retirement age or the expiry of their term of office, where such exist, the conditions governing promotion, transfer, suspension and cessation of their functions, and the actual independence of the judiciary from political interference by the executive branch and legislature.” 

Under the bills currently before the legislature, one major change includes the dismissal of Judges, which can currently only occur with a two-thirds vote of Parliament. 

Under the changes, the Judiciary Service Commission (J.S.C.), which is composed of officials appointed by the Prime Minister and Cabinet, can recommend the dismissal of Supreme Court Judges. 

Mr García-Sayán said this was not consistent with international standards for judicial councils. 

“I note with concern that the wide powers entrusted to the executive branch of Government (acting through the Head of State) in relation to the formal appointment of J.S.C. members risk hampering the independence of the J.S.C. and the judicial system as a whole. 

“The power of the Head of State with regard to the dismissal of the members of the J.S.C. is equally problematic, since it allows the Head of State to exert influence over individual members of the Commission, whose continuous service as a member of the J.S.C. depends on maintaining good relations with the Head of State. 

“Even assuming that the independence and impartiality of the members of the J.S.C. is not undermined by actual interference from the executive branch, their perceived independence and impartiality would be irremediably compromised.” 

Mr García-Sayán further explained the Court of Appeal has jurisdiction on appeals relating to any decision of the Supreme Court in legal proceedings relating to the provision of Article 4 of the Constitution. 

“Together with the Constitution Amendment Bill, the amendments to the Judicature Ordinance and the L.T.A. (Lands and Titles Act) would fundamentally alter the structure of Samoa’s judiciary by introducing an entirely new administration of justice system consisting of two parallel and potentially competing court systems: the ‘ordinary’ court system and the ‘customary’ court system,” he wrote.  

“I am concerned that the establishment of this new customary court system creates serious legal uncertainties with regard to the applicable law (ordinary civil and criminal legislation or customary law). In this regard, I notice that the amendments do not provide a definition of ‘customs and usages’, a notion that goes far beyond matai titles and customary land to cover several aspects of traditional life, including some that may have criminal or civil relevance. 

“By recognising that Land and Titles courts have ‘supreme authority over the subject of Samoan customs and usages’, the proposed amendments may have the effect of extending the jurisdiction of such courts far beyond their traditional jurisdiction. 

"This situation has the potential of creating serious conflicts of jurisdiction with ordinary courts in any case where issues relating to the interpretation or application of Samoan customs have a civil or criminal relevance.”

In relation to the appointment and dismissal of the judges of the L.T.C. Mr García-Sayán said the involvement of the members of the executive raised serious concerns in relation to the respect for the principles of independence of the judiciary and separation of powers, since it allows the Prime Minister and Cabinet to become involved with the personal independence of Judges, who could feel pressured to support the position of the executive in order to be appointed or to minimise the risk of being dismissed. 

“In this regard, I also observe that in light of its composition, the Komisi, which plays an important role in many decisions relating to the career of customary judges, may be exposed to the risk of political influence, and cannot be regarded as an independent judicial council established in line with international standards,” Mr García-Sayán said. 

Mr García-Sayán concluded by urging the Samoa Government and the Samoa Parliament to reconsider the bills in order to bring them into line with international standards of judicial independence. 

Among the recommendations included in the letter is the wholesale repeal of constitutional amendments to Article 4 of the Constitution and to maintain the fundamental role of the Supreme Court in upholding fundamental rights. 

All recommendations made by the Special Rapporteur are as follows:

1. Reconsider the three bills, with a view to ensuring their compliance with existing   international   standards   relating   to   the   independence   of   the judiciary and the separation of powers;

2. Review the  composition  of  the  Judicial  Service  Commission,  so  as to ensure that it includes a majority of judges elected by their peers and to exclude members of the executive branch of power from its members;

3. Review the  procedure  for  the  appointment  of  the  Chief  Justice  and the Supreme Court judges. Transparency and public scrutiny should guide the selection process of judges of the Supreme Court through public hearings with citizens, non-governmental organizations and other interested parties to   scrutinize   the   independence,   competencies   and   integrity   of   the candidates;

4. Reconsider the  role  of  the  Prime  Minister  and  Cabinet  in  the selection, promotion, transfer and  dismissal of Supreme Court judges and ordinary judges.  Should  the  executive  power  retain  a  role in  these  processes,  the formal   decision   of   the   Head   of State   should   be   based   on   the recommendations of an independent Judicial Service Commission, which he/she should follow in practice;

5. Develop clear procedures and objective criteria for the remuneration  and conditions of service of judges;

6.    Repeal the constitutional amendments to article 4 of the Constitution, and maintain  the  fundamental  role  of  the  Supreme  Court  in enforcing  the fundamental rights enshrined in Part II of the Constitution

7.    Reconsider the system of customary justice in Part IX of the Constitution by retaining the fundamental role of the Supreme Court in overseeing the decisions  of  the  Land  and  Titles  courts  so  as  to ensure their  compliance with the requirements of article 14 of the Covenant.

8.    Ensure that  the  reform  of  the  judiciary is  the  result  of  an  open, fair  and transparent   process,   involving   not   only   the   Government   and   the Parliament,  but  also  extensive  public consultation  with  judges,  lawyers and their professional associations, the Ombudsman, the National Human Rights Institution and civil society actors.

9.    Adopt  any   other   appropriate   measure   to   ensure   the   protection   and promotion  of  the  independence  of  the  judiciary and  the  separation  of powers.




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